Completing the Form I-9 for Workers Under a TPS Designation

Form I-9
October 20, 2022

The Department of Homeland Security (DHS) designates nationals from certain countries with Temporary Protected Status (TPS). This temporary immigration status provides these beneficiaries temporary protection from deportation when issues such as armed conflict or natural disasters might make it unsafe to return.

The DHS lists all TPS-eligible nationalities on the United States Citizenship and Immigration Services (USCIS) TPS webpage. In some cases, an Immigration Judge (IJ) or the Board of Immigration Appeals (BIA) may also receive this. USCIS will provide the appropriate paperwork upon filing with proof of the TPS grant.

In addition to preventing removal from the United States, a TPS designation, once granted, makes a beneficiary eligible for receiving employment authorization documents and travel authorization. However, for many employers attempting to complete or re-verify the Employment Eligibility Verification (Form I-9), this status can cause considerable confusion. This struggle is because employers cannot ask an individual for proof of their TPS status.

Form I-9 requires employers to note the date of expiration of documents used to satisfy the employment authorization requirements and re-verify the employee’s authorization before the expiration date. Beneficiaries of a TPS can receive an automatic 540-day extension of their employment authorization documents (EAD) through October 26th, 2023, upon a timely filing for an extension. Past this date, the 540-day extension will decrease to its previous length of only 180-days. Employers can verify this extension for Form I-9 through a Notice of Action (Form I-797C) and the expired EAD.

Sometimes, a TPS employee may not have a Form I-797C Notice of Action because an automatic blanket extension extended their EAD in the Federal Register. For example, this extension occurs for specific countries or in a notice sent to the beneficiary. In these cases, the employer must use the EAD number, confirm it is in an A-12 or C-19 category which indicates TPS status, and the extended expiration date contained in the Federal Register notice or the official USCIS notice sent to the employee in completing or reverifying the Form I-9.

Employers who attempt to comply with these rules in Form I-9 know it is a confusing process fraught with many potential pitfalls. For example, employers may reject documents due to confusion or unintentionally request additional unnecessary documentation in the process. These issues occur when someone unfamiliar with the process attempts to complete the Form I-9 for their workers. The best way to avoid these mistakes and the potential penalties and liabilities is to invest in an electronic Form I-9 management system. This system can guide employers through the whole process helping to ensure compliance while providing safe and secure storage of forms and documentation and reminders when action is required.

Learn more about automating your employment eligibility verification and ensuring compliance with I-9 Compliance.